DMR eligibility decision by H.O. Brown 12 6 06

Keyword: domicile

Hearing Officer: Kathleen Brown

Counsel present for Appellant: James Nelligan

Counsel present for DMR: John Mitchell

Hearing Officer decision: December 6, 2006

Appeal confirmed by Commissioner: December 28, 2006

Outcome: Ineligible

The issue before the hearing officer was whether or not the appellant was domiciled in Massachusetts, and thus eligible for DMR services. The appellant resides at New England Village, a residential program from mentally retarded adults in Pembroke, MA. Prior to his move to Massachusetts, the appellant resided with his parents in NY. His parents still reside in NY. Up until November 21, 2005, the appellant's mother had been his guardian. After this time, Dr. Andi Weiss was appointed permanent guardian by a Mass court. Dr. Weiss was appointed guardian after the denial of eligibility, and appeal. The crux of the case turns on DMR's eligibility regulations, which clearly state that a person seeking eligibility for services provided by DMR must be domiciled in the Commonwealth. 115CMR6.04(1). In addition, the regulations state that an individual is "domiciled in the Commonwealth if ... [they reside] in Massachusetts with the intention to remain here permanently for an indefinite period." 115CMR6.04920. Finally, there is a presumption that the following persons are not domiciled in Commonwealth: "persons who reside in a home or other setting subject to licensure or regulation by the Commonwealth which residence was arranged by a parent, guardian or family member who is not domiciled in Massachusetts and was not so domiciled at the time of the person's placement." 115CMR6.04(2)(b).

The appellant's lawyer submitted a library card, voter card, and other documents as evidence of the appellant's domicile in Mass., and intention to remain in the state. However, the hearing officer reasoned that these documents were not persuasive, as the clinical team report filed with the petition of guardianship for the appellant stated that he was: "unable to maintain his own safety in the community, he [was] unable to make decisions regarding his own medical care or financial issues. He [could not] handle money or even simple transactions and requires assistance in most of his activities of daily living, including cooking and dressing himself." Because the appellant could not do the most basic of tasks on his own, the documents submitted as evidence of his intention to remain in Mass. were held unpersuasive. "Without clinical evidence from a qualified clinician that the appellant has the cognitive ability to form the intent to remain in Massachusetts, I find that the Appellant has failed to show by a preponderance of the evidence that he is domiciled in Massachusetts." Thus, the determination for ineligibility was upheld.